Case Summary and Outcome

A radio station brought a writ of fundamental rights protection (acción de tutela) against a judgment ordering it to modify the content of one of its morning programs because it was deemed inappropriate for the type of young listeners (children and youths) that made up its audience. The Court ruled to protect the exercise of freedom of expression and reversed the contested decision.

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Facts

A foundation commenced a popular action against a radio station because, in its opinion, one of its radio programs contained vulgar and inappropriate expressions that were being listened to by minors as the program was being broadcast in the morning. The Foundation asked the Court to order to the Ministry of Communications to sanction the radio station and its announcers.

In the popular action case, the tribunal of first instance granted the plaintiffs’ request. It argued that, due to the program’s schedule and popularity, minor children were listening to the sexually explicit language used by the radio broadcaster and this was interfering with their education and development. Furthermore, the tribunal argued the Ministry of Communications was charged with ensuring radio show contents, to ensure they did not affect the rights of third parties. It concluded that the Ministry breached its duties when it allowed the disputed broadcast. As a result, the tribunal ordered the Ministry to investigate whether the program’s content should be subject to restrictions and, in the affirmative, to impose the relevant sanctions.

The radio station appealed the first instance judgment The appellation which was heard by the Council of State. The Council argued that “freedom of expression is not an absolute right and is subject to limitations that preserve, among other things, public morals and the rights of others.” In addition, it argued the expressions containing sexually explicit language harmed underage radio listeners. Furthermore, it asserted it was not subjecting the program to censorship but simply protecting the right of listeners to receive quality information that was respectful of the rights of third parties. Finally, it concluded the Ministry of Communications was responsible for monitoring and controlling this type of broadcast to ensure it complied with radio transmission laws and that the Ministry had not carried out this duty with respect to the radio show in question. As a result, the Council of State decided to protect the plaintiff’s rights and ordered the radio station to adjust the program’s topics and language so the listeners received quality content. Finally, it ordered the Ministry of Communications to carry out its monitoring and control duty regarding the radio station.

As a consequence, the Ministry imposed a financial penalty on the radio station over the content of the program. In its opinion, the radio station was not in observance of radio transmission laws and the Children’s Code. Additionally, the radio station also had to modify the content of its program.

In view of the situation, the radio station brought a writ of fundamental rights protection (acción de tutela) against the decision in the popular action case. It argued the Council of State ruling had incurred in a vía de hecho (an arbitrary or unlawful decision issued in grave and flagrant violation of the legal system that violates a person’s fundamental constitutional rights) because the order constituted censorship and violated the station’s right to freedom of expression. The judge of first instance rejected the tutela because it did not consider it a remedy against judicial decisions. The judge of second instance affirmed this decision.

The Constitutional Court decided to review the case, grant the radio station’s request and reverse the popular action ruling.

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Decision Overview

The Court decided three legal issues. Firstly, whether freedom of expression protects broadcasting a radio show containing sexually explicit expressions that is considered obscene or indecent by a part of the population when the show’s audience includes minors.

Secondly, it decided whether the order to the Ministry to monitor the radio show’s content, to ensure it stayed within the bounds of the law, constituted censorship.

Finally, it decided whether imposing a financial penalty on a radio station for broadcasting a program with sexual content, when its audience includes minors, violates freedom of expression.

The Court first defined the right to free expression and highlighted its importance in a democratic state. In this regard, it indicated this right has a “special legal status”, i.e., it has “an important degree of immunity with regard to state regulation that is superior to the one afforded to the legal interests and values that are protected by other rights and freedoms, in light of the special value placed by modern constitutions and international regulation on the existence of a free personal and social communication process” [p. 52].

Given this special protection, the law has created special protective mechanisms, i.e., a series of presumptions that protect its legitimate exercise. The first one, explained the Court, is a “presumption of coverage” [p. 53] that extends to all speech. It means, in the absence of proof to the contrary, any expression disseminated is considered legitimate and therefore worthy of state protection. The second one, continued the Court, is the “assumption that, when in conflict, freedom of expression prevails over other constitutional rights, values and principles” [p. 53]. This presumption does not apply when it is shown, by applying the proportionality test, that the competing right prevails in that specific instance. The third presumption, stated the Court, was a “suspicion of unconstitutionality cast upon limitations to freedom of expression.” As a result, a “strict constitutionality control” [p. 53 and 54] should be applied in the face of potential freedom of expression limitations. Finally, the Court stated, any type of censorship is banned.

Although freedom of expression enjoys a superior status in the legal system, this does not mean it is an absolute right. In the Court’s opinion, freedom of expression can be legitimately restricted under certain circumstances. Nevertheless, any restrictions placed on freedom of expression must be founded on reasons strong enough to pass a strict proportionality test, in accordance to article 13 of the American Convention on Human Rights. Furthermore, in order to be legitimate, any limitation must: “(1) be precisely and explicitly prescribed by law; (2) be directed at attaining imperious objectives; (3) be necessary for achieving those purposes; (4) be subsequent and not prior to the expression; (5) not constitute any type of censorship, which includes the condition of being neutral with respect to the content of the expression that is being limited; (6) not have an excessive impact on the exercise of this fundamental right [freedom of expression]” [p. 71].

Furthermore, the Court highlighted the existence of international consensus regarding certain types of speech not protected by freedom of expression and that do not fall under the scope of the presumption of coverage. These are: “(a) propaganda for war; (b) any advocacy of national, racial, religious or other type of hatred that constitutes incitement to discrimination, hostility, violence against any person or groups of people (mode of expression that includes the categories commonly known as hate speech, discriminatory speech, incitement to crime and incitement to violence (c) child pornography; and (d) direct and public incitement to commit genocide” [p. 60]. Consequently, the right to freedom of expression protects all other types of expression. As a result, the Court emphasized that freedom of expression extends to expressions “that are unusual, alternative or diverse, which includes expressions that are offensive, shocking, striking, indecent, scandalous, eccentric or simply contrary to majority beliefs and stances, because this constitutional freedom protects the content as well as its tone. Thus, what might be considered shocking or vulgar by some might be natural or eloquent for others and therefore the fact that a message might scandalize some is no reason to restrict it” [p. 63].

In particular, with respect to sexually explicit speech, the Court indicated that although it is protected by freedom of expression, it is subject to a higher level of regulation. Additionally, the exercise of free expression may “be at odds with other constitutionally protected rights, values and interest, particularly when they involve minors–although, in strict compliance with every single one of the conditions that legitimize the limitations and, seeking to harmonize the conflicting rights, values and interests” [p. 82].

For the Court, when tensions exist between freedom of expression and the rights of minors, who also have prevalence in the legal system, the aforementioned test must be applied and if any limitations are placed upon free expression, they must comply with the pertinent rules on limitation and requirements.  The Court emphasized that under no circumstances, the supremacy of underage minor rights can be used as a “wild card to limit freedom of expression each time it is foreseen that, possibly, a child will receive the information, opinions and images disseminated by mass media” [p. 74].

The Court Considers this case exemplifies the tension between several of the rights that fall within the scope of freedom of expression, i.e., the right to information and press freedom. With respect to the right to information, the Court has stated is it is a two-way right in the sense that it can be exercised by the person that issues and spreads the information and also by the person receiving it. That is why, whoever issues and disseminates information must comply with the requirements of “veracity and impartiality” explicitly set forth in the Constitution, and always respect the rights of third parties specially the rights to honor and privacy. Regarding press freedom, the Court has stated the media must adhere to the following criteria when exercising the right to inform: (i) impartiality and veracity as established in the Constitution and by the Court’s rulings; (ii) distinction between opinions and information; and (iii) assurance of the right of rectification.

With respect to the case under analysis, the Court asserted the content of the show was ”informative, recreational, educational, musical, commercial, filled with opinions and about audience interaction” [p. 94] and confirmed that sexually explicit expressions were part of the program. Notwithstanding, it could be not be argued the radio program transmitted pornographic or obscene contents or any other type of expression that was not covered by the presumption of protection of freedom of expression, e.g., incitement to violence or child pornography. Consequently, the expressions under examination were, in principle, protected by the right to freedom of expression despite being considered vulgar or shocking by some. Further, the Court held that although the radio show was very popular it had not been demonstrated that most of its listeners where underage. The Court added that even if that were the case, the parents or guardians of the minors in the audience could choose from a large number of alternate radio stations that broadcasted content more in line with their ideas and models of virtue.

The Court added, although a law regulates the media’s obligations regarding minors, the obligations set forth in the law are vague and undetermined and therefore do not apply in this case. And, in any event, the Court considered other, less burdensome measures were available, such as establishing time slots. The Court also considered the administrative judge that ruled against the radio station did not indicate the imperative purpose of the restriction and therefore did not meet the defining, argumentation and evidence requirements that justify any limitation on the right.

The Court asserted the order given to the Ministry to monitor the content of the radio show constituted a type of censorship and was therefore completely prohibited. It further elaborated, “granting powers that allow it to interfere with the content of constitutionally protected expression to state entity is tantamount to legitimizing censorship, repression and forcing official thought upon the citizenry because, in fact, the what, how and who of an expressive act are some of the elements protected by the scope of the fundamental rights in question” [p. 112] (italics in the original).

In this regard, the Court stated that forcing the radio station to change the contents of the show violated the State’s neutrality obligation with respect to freedom of expression. That is, the program was being rated and evidently subordinated to a subjective concept of “quality” that violated the burdens and requirements applicable to freedom of expression restrictions.

Finally, the Court indicated that since the limitations imposed on the radio station were unconstitutional, the Ministry of Communications resolution imposing the financial penalty should be nullified. Notwithstanding, it invited the radio station to self-regulate the content of its programs in light of the possibility that minors were listening and therefore it was advisable to adapt the content to the audience.

Justice Rodrigo Escobar Gil dissented from the Court’s majority decision. He stated the constitutional adjudicator should protect the rights of minors even at the cost of restricting freedom of expression. He opined the order to adjust the content did not violate the disputed rights because it simply sought to adapt the show’s content to its audience. Finally, he indicated that the content of radio programs directed at children should move away from vulgarity and inappropriateness.

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